OFFICE OF THE ZONING BOARD OF ADJUSTMENT
Town of Halifax, Vermont
ZBA/SELECTBOARD JOINT MEETING MINUTES
January 12, 2016
Call to Order
The meeting was called to order at 7:07 p.m. Zoning Board members Sirean LaFlamme, Bill Pusey, Brian McNeice, Stephan Chait, and Linda Lyon were present, as were Selectboard members Lewis Sumner, Doug Grob, and Brad Rafus. Paul Taylor, Janet Taylor, Arthur (Jesse) Ferland, Sue Kelly, Lesley Pollitt, John LaFlamme, Nicholas Bartenhagen, Cara Cheyette, Bonnie Brown, and Robbin Gabriel were also present.
Changes and Additions to Agenda
No additions proposed. Bill Pusey made a motion to approve previous meeting minutes after new business discussion. Brian McNeice seconded the motion, which passed, 5-0.
Discuss Denison Conditional Use Permit Decision
Stephan Chait handed out copies of a document he had prepared to assist the Selectboard in understanding the process behind the ZBA’s review of the Denison conditional use application and the reasoning behind their subsequent decision. Titled “The Regulatory Landscape,” the document included those sections of the Halifax Zoning Regulations, Halifax Town Plan, and Vermont State Statutes (Chapter 117) which the Board had referenced in their considerations. Chait summarized his view of the relationships between statutes, plan, and regulations, which led him to conclude that the Denison project would have an undue adverse impact on the nature of the Conservation District. There is a disagreement on the Board, he stated; there were three people in favor of denying it (the permit) and two people opposed to denying it. I think part of the difference is in interpretation, he added. A zoning decision has two components—objective, and then interpretation and judgment. Linda Lyon said she found in her research that planning, zoning, and the law did not always align, and she was helped by a state statute directive (Chapter 117, §4410) to defer to the town plan if zoning bylaw was not in conformance with the plan.
Doug Grob said he had read the minutes of the conditional use hearings and the Zoning Board’s written decision, and he was getting a better understanding of the proceedings. I was a little surprised, he added, because you are referring to the Town Plan now, but except in the last hearing there was little or no discussion of the Town Plan. We had questions about the Town Plan in our initial queries to the applicant, replied Chait, but the responses were inadequate. The applicant addressed the Plan in their findings and conclusions, but didn’t cover the section we had asked them to talk about—the Conservation District and the recommendations for that district.
Sirean LaFlamme read aloud a short excerpt from the December 1st, 2015, Selectboard meeting. In that conversation, Cara Cheyette had questioned the lack of written dissenting opinion in the Denison decision and suggested it might be useful to the Selectboard to have one. LaFlamme had replied that a written dissent was not a legal requirement, and the two members opposed to the denial believed current zoning regulations allowed the quarry as a conditional use. LaFlamme also handed out copies of a list of concerns she had written in response to a first draft of the ZBA findings. Lyon said that while the ZBA decision remained the same, some of LaFlamme’s commentary resulted in changes to the final ZBA written decision. LaFlamme read into the record her concluding paragraphs:
It is stated that the application does not conform with critical provisions of the Vermont Municipal And Regional Planning Act without citing any specific issues. These findings do not clarify the views of each individual on the board. Due to the fact that this is very likely to be appealed, and the issue was brought up by a community member at the last public hearing asking, would the reason for each board members decision be made public, and Bob Fisher responded, yes they would.
Most of the issues mentioned are based on Town Plan recommendations. The issues regarding the zoning are based on assumptions not legal facts. The lack of transparency of how each member voted and why is not documented. I feel the information that is supposed to be of factual evidence to make a legal decision, is misrepresented, and the decision is made on issues that are not legal points. The likelihood of this being appealed and the Environmental Court sending it back to our board to revisit is high. This will be very embarrassing. As these finding are written, I do not feel comfortable putting my signature on this document.
Brad Rafus asked who paid for the road/traffic analysis done by expert Michael Oman. That was part of the evidence presented by the opponent at the public hearings, answered Chait. This study was the main evidence; the applicant had opportunity to rebut it, and did not. We did use this information in our findings. They (the applicant) did answer questions on truck weights, number of trips, and possible route changes, said Bill Pusey. It was discussed that the permit could have conditions attached to address certain concerns, said LaFlamme. That would be appropriate if you were going to approve the permit, said Lyon. Before we voted on the permitting decision we did talk about conditions, continued LaFlamme, and we came to a standstill. No conditions were considered. We don’t have minutes, or a recording—that was deliberative session, replied Lyon.
Returning to the road study question, Rafus said he had asked Michael Oman several times how he could determine potential damage to a road without taking core samples to learn the actual composition of the roadbed. No samples were taken, so I don’t know what he (Oman) was basing his information on, added Rafus.
Bonnie Brown said she had read a legal case cited by both the applicant and the opposition in their findings; that case had been remanded back to its authors based on the premise that the written decision had not taken the cumulative impacts on the community into consideration. It might be helpful to know that this has happened in Vermont very recently, Brown said.
Grob brought up the subject of extraction estimates for the proposed quarry site; these estimates ranged from 482,420 to 246,000 cubic yards. One estimate was used in calculating the applicant’s fee to the state, and the other two were based on site and reclamation plans included in the permit application. LaFlamme pointed out that some of the variation could be explained by the fact that not all materials to be moved on the site would be physically removed; some would be stored and repositioned during ongoing reclamation as the project progressed. Grob acknowledged such calculations were not easy to make in advance of the actual work. Oman testified during the hearing that removing the larger amount of material would require 6.7 trips a day. We took these guys with a grain of salt, said Brian McNeice, and Pusey added they were assuming a lot—it’s all under the ground, it’s not all tabletops and counters.
I know you have a meeting after this, are there any other questions?, asked Lewis Sumner. I’m not assuming agreement, said Chait, we’re trying to provide clarity. I’ve never been able to get an opinion from the Selectboard. I haven’t given an opinion, replied Sumner, because it might come back to us from the court to make a decision. We’ve been through that before; we had to go to court and testify. When you’re sitting on a Board, said Rafus, your opinion should really stay home. You’re here to do what is best for the town, take the facts, and make a decision. I brought that up at a meeting almost a year ago, said Pusey; I could see this was going to be much more involved, and most cases like that end up in court. Both parties have put a lot of effort and finance into this. Grob said he appreciated all the ZBA’s hard work.
Cheyette asked LaFlamme to expand on her written remark that the conditional use decision did not state specifically how the application failed to conform to the Vermont Municipal and Regional Planning Act. Did you still feel that way when the final decision was written, she asked. LaFlamme said that was based on such things as the proposed site being situated in the middle of the property, not next to the road, and on the statement that a large habitat gap would be created. That’s not a legal argument, she said; and this is a 69-acre parcel in the midst of 1,210 acres. The area is not going to be visible from the road—it won’t create an eyesore. Regarding noise, LaFlamme said the decision’s comments were based on assumption, not fact.
Hearing of Visitors
Sue Kelly said that the Selectboard had voted at their October 6th, 2015 meeting to send a final letter to the District #2 Environmental Commission in the matter of the Denison Act 250 application. Did you rescind that vote, she asked. Grob and Sumner said the Board had sent their draft to Attorney Bob Fisher, but had not voted to submit to Act 250. Kelly pressed strongly to have the document submitted; Grob and Sumner responded that the Board needed to discuss the issue further. (Note: Minutes and audio of the 10/6/15 meeting were reviewed; no motion was made and no vote taken.)
Having been involved in a previous appeal process, said John LaFlamme, I know it is a complicated situation; there are a lot of questions. It’s time for the lawyers to hash it out, and the appeals court to make the decision. We’ve had enough trouble in town getting through this process. I understand there’s a petition to repeal zoning. The more we rehash this, the more we’re pushing people towards throwing out zoning. The decision has been made; it’s time for the court to decide.
Cheyette stated that from her perspective tonight’s conversation was a nice thing; it honors the work you (the ZBA) put in to have the Selectboard say, help us understand what you were thinking.
Approval of Previous Meeting Minutes
Lyon made a motion to approve the 12/8/15 ZBA meeting minutes as written. Chait seconded the motion, which passed, 5-0.
Lyon made a motion to adjourn the meeting. McNeice seconded the motion, which passed, 5-0. The meeting was adjourned at 8:13 p.m.
Interim ZBA Secretary